High court to hear Obama recess appointments case

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Last Updated: Mon, Jun 24, 2013 19:30 hrs

The Supreme Court on Monday waded into a major constitutional clash between President Barack Obama and congressional Republicans that could fundamentally limit a president's use of recess appointments to fill high-level administration posts.

The justices will review a federal appeals court ruling that found Obama overstepped his authority when he bypassed the Senate last year to fill three vacancies on the National Labor Relations Board.

The case — to be decided next term — highlights the growing partisanship that has led GOP lawmakers to stall or filibuster several of Obama's choices to head federal agencies that Republicans distrust. That includes nominees to the labor board, which has issued several union-friendly decisions, and the newly formed Consumer Financial Protection Bureau.

The Constitution gives the president the power to make temporary appointments to fill positions that otherwise require confirmation by the Senate, but only when the Senate is in recess.

At issue for the Supreme Court: What constitutes a congressional recess and does it matter when a vacancy occurs?

A three-judge panel of the U.S. Court of Appeals in Washington, D.C., held earlier this year that recess appointments can be made only during the once-a-year break between sessions of Congress. Two judges on the panel also ruled — for the first time — that a vacancy must occur while the Senate is away in order to be filled during the same break.

If the Supreme Court agrees, it would make it nearly impossible for a president to use the recess power, giving the opposition party in Congress the ability to block administration nominees indefinitely.

"Should they uphold the D.C. Circuit, it would be a major blow to presidential power," said Sanford Levinson, a constitutional law professor at the University of Texas. "The rationale for recess appointments in the modern world is much more the ability of the president to staff his administration in the face of Senate hostility."

Obama has made relatively few recess appointments, 32 in his four-plus years in office, according to the Congressional Research Service. Bush made 171 such appointments and President Bill Clinton filled 139 posts that way in their eight years in office, the research service said.

The Obama administration argues the ruling is a radical departure from precedent that would invalidate hundreds of recess appointments made by presidents of both parties over more than 100 years. Those appointments include "three Cabinet secretaries, five court of appeals judges, 10 district court judges, a director of Central Intelligence, a chairman of the Federal Reserve, numerous members of multi-member boards, and holders of a variety of other critical government posts," Solicitor General Donald Verrilli said in his petition to the Supreme Court.

But all 45 Republicans in the Senate — led by Minority Leader Mitch McConnell, of Kentucky— have filed a friend of the court brief asserting that Obama "made an unprecedented power grab" by making the recess picks.

The nature of the president's actions, during brief Senate breaks that Congress explicitly said were not formal recesses, is driving the current legal controversy.

The case stems from Obama's decision to fill the three NLRB vacancies on Jan. 4, 2012, with Congress on an extended holiday break. At the same time, however, the Senate held brief, pro forma sessions every few days as part of the Republicans' explicit strategy of keeping Obama from filling vacancies through recess appointments. The president also used a recess appointment to install Richard Cordray as head of the financial protection agency, a nomination the GOP had blocked for a year and a half.

In taking up the case, the court said it would also consider the narrower question of whether recess appointments can be made during pro forma sessions — where one senator gavels in and out for a few minutes every three days. The appeals court did not address the issue of how short a break can count as a recess.

The case challenging the appointments was brought by Noel Canning, a Washington state bottling company, which claimed an NLRB decision against it was not valid because the board members were not properly appointed and that the board did not have enough members to do business without the improperly appointed officials.

Since the Canning decision, a second federal appeals court in Philadelphia issued a similar opinion finding that recess appointments can be made only between sessions of the Senate. But on three earlier occasions, federal appeals courts have upheld recess appointments.

If the latest rulings stand, they could invalidate more than 1,600 NLRB decisions, and call into question the legitimacy of enforcement actions by the Consumer Financial Protection Bureau, many of which affect the mortgage industry.

The NLRB would effectively be shut down as a ruling against the administration would leave the board with only one member, and it needs three to conduct business.

The Consumer Financial Protection Bureau likewise would have to cease all investigations against mortgage lenders and other financial entities.

"It's going to be sheer chaos," said Alan Kaplinsky, a consumer financial services attorney based in Philadelphia. "If the court determines it was not valid, then literally almost every act taken by the CFPB since January 2012 will be under a huge cloud of uncertainty."

Obama used the recess appointment to install Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the labor board, giving it a full contingent for the first time in more than a year. Block and Griffin are Democrats, while Flynn is a Republican. Flynn stepped down from the board last year.

The parties' roles were reversed when a Republican President George W. Bush was in the White House and Democrats controlled the Senate in the final two years of Bush's presidency. Then, Senate Majority Leader Harry Reid employed the same tactic of convening the Senate every few days to keep Bush from filling vacancies through recess appointments. Unlike Obama, Bush did not press the issue.